Rule 8.548 allows many different non-California courts to ask the California Supreme Court for help on state law questions.  A request can come from “the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth.”  Almost always, it’s the Ninth Circuit that uses rule 8.548 (see, most recently, here), but the D.C. Circuit has invoked the procedure at least twice.

Now, however, the Second Circuit wants the Supreme Court to answer a question.  A three-judge panel in Migdal Insurance Company Ltd. v. The Insurance Company of the State of Pennsylvania, yesterday said it wants the court to resolve these issues:  “(a) Where the insurance policies of two insurance companies (identified in this question as A and B) cover the same risk, the policy of company A is primary and contains no ‘other insurance’ clause, and the policy of company B, which is also primary, contains an ‘other insurance’ clause stating, ‘This insurance is excess over: . . . Any of the other insurance or your self-insurance plan that that [sic] covers a loss on the same basis,” is company A entitled under California law to equitable contribution from company B?,” and “(b) Under the circumstances described above and where the amount Company A paid to settle a case exceeds the policy limit of Company B’s policy, is a clause in the insurance policy of company B stating, ‘All payments made under any local policy issued to you by us or any other insurance company will reduce the Limits of Insurance of this policy’ enforceable under California law?”  (Footnotes omitted.)

Interestingly, both sides in the Migdal Insurance case opposed sending the case to the Supreme Court.  The Second Circuit, however, said the parties’ arguments that California law is “clear in favor of their opposing positions . . . reinforce our
view that California law is not clear on the questions we have certified.”

Meanwhile, another insurance law question might soon be headed the Supreme Court’s way from the usual source.  The Ninth Circuit last month entered an order in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc., asking the parties to address at oral argument if the Supreme Court should be asked to answer “whether there is an ‘occurrence’ under a commercial general liability policy when claims for negligent supervision, hiring, or retention are made against an employer and the underlying injury is caused by the intentional act of an employee.”

Unlike in Migdal Insurance, the parties in Liberty Surplus are split about whether the Supreme Court should be asked to resolve the issue.  At the Liberty Surplus argument earlier this week, the insured’s attorney encouraged the referral and the insurance carrier’s counsel said the law was clear.  The Ninth Circuit seems to be leaning towards asking for help.  One member of that court’s panel — Judge Paul Watford — said he had read five or ten times a “but see” cite in an earlier Supreme Court decision and confessed, “I can’t for the life of me figure out what [the court was] trying to signal to the outside world.”

[July 28 update:  The Supreme Court docketed the Migdal request on July 27, but is treating the request as filed on July 14, the day it was received from the Second Circuit.]

[July 29 update:  On its own motion, the Supreme Court yesterday extended until August 16 the time to file rule 8.548(e) letters supporting or opposing the Second Circuit’s request.  That’s 20 days after the request was docketed rather than 20 days after when the request was received and treated as filed.]